City ophthalmologist accused of unnecessary procedures

Federal government files lawsuit alleging fraud

March 15, 2011|By Tricia Bishop, The Baltimore Sun

The U.S. government has filed a federal lawsuit against a Baltimore doctor, accusing him of fraudulently billing thousands of dollars for hundreds of medically unnecessary eye procedures performed on dozens of patients at an outpatient clinic owned by Bon Secours Hospital.

The 33-page civil suit claims that between Oct. 29, 2002, and April 14, 2009, Dr. John Arthur Kiely repeatedly performed laser eye surgery on patients who didn't need it — more than a dozen times on some people. He then falsely billed Medicare and Medicaid for the unwarranted work, according to the court documents, which were filed March 11.

The procedures led to blindness in one woman, who should have been referred elsewhere for a different procedure, records claim.

"Her vision loss in the right eye could have been prevented," the papers said. "The repeated [Argon Laser Trabeculoplasty, or ALT, procedures] performed by Kiely were not medically necessary."

Kiely did not return messages left at his Timonium home or his St. Paul Street offices, where he maintains a primary ophthalmology practice at Mercy Medical Center, according to records from the Maryland Board of Physicians. A lawyer who previously represented him in other matters was unfamiliar with the suit.

Mercy Medical Center officials said they were also unaware of the allegations against Kiely.

"Dr. Kiely is a private physician who has privileges on Mercy's Medical Staff, but has a low volume of activity here," spokesman Daniel Collins said in an e-mailed statement. "We've just received this information so are investigating at this time."

A spokeswoman for Bon Secours Hospital, which runs the specialty clinic at 10 N. Payson St. where Kiely allegedly performed unnecessary operations, was unavailable for comment.

Kiely worked as an independent contractor for the clinic, according to court records. He resigned from the medical staff in June 2009, a representative from Bon Secours Health System Inc., the nonprofit parent of the Baltimore hospital, confirmed.

The allegations against Kiely are similar to those lodged recently against two other Maryland doctors, both cardiologists accused of placing stents into the arteries of patients who didn't need them.

In Baltimore County, Dr. Mark G. Midei is facing scores of individual lawsuits and the potential loss of his medical license, which is now under review, for allegedly placing unnecessary stents into hundreds of patients at St. Joseph Medical Center. The Towson hospital agreed last year to repay federal funds it received for Midei's questionable work as part of a $22 million settlement that also resolved separate kickback claims.

And last year, Salisbury doctor John R. McLean was criminally indicted on federal health fraud charges for allegedly placing inappropriate stents in patients at Peninsula Regional Medical Center. His trial is set for July.

Neither of those doctors has been sued by the government individually — unlike Kiely, who is being asked to pay triple the damages he allegedly caused. The number of such cases is on the rise, however, Maryland U.S. Attorney Rod Rosenstein said in an e-mailed statement.

"Such cases often result in substantial financial recoveries and financial penalties for people who defraud the government," Rosenstein said.

The five-count lawsuit against Kiely was filed on behalf of the Department of Health and Human Services and the Centers for Medicare and Medicaid Services, which administers the government-subsidized medical insurance programs. It seeks triple the amount of certain financial damages suffered by the government, plus penalties of up to $11,000 per false claim, among other things.

The complaint alleges that Kiely performed hundreds of medically unwarranted operations — either the ALT or a procedure known as Lysis of Adhesions, or LAO — on about three dozen patients.

The ALT is used to treat open-angle glaucoma, a disease of the optic nerve, and involves using a laser to make tiny corrective burns to portions of the eye to prevent further vision loss. Performing ALTs on patients without that type of glaucoma, or more than twice on the eyes of patients who do have it, "is neither reasonable nor medically necessary," according to court records.

Kiely "nevertheless … knowingly billed and caused the billing of Medicare and Medicaid for more than two ALTs per eye per patient," the complaint said, adding that "records for a number of Kiely's patients for whom ALTs and related health care services were billed … show that none but the first ALT performed per eye per patient was supported by medical necessity."

There was no "meaningful assessment of the optic nerve" included in patient records, the complaint says. And Kiely frequently performed the procedure on both eyes of a patient, even though it's "unusual for patients to have uncontrolled glaucoma in both eyes simultaneously."

The LOA is a laser procedure that's used to treat rare complications from cataract surgery. Kiely billed for this procedure roughly 1,140 times over a five-year period, according to the lawsuit — more than 18 times the number billed by the second-highest LOA performer in Maryland.

"Moreover, the LOA procedure was invariably billed for both eyes" and "more than twice per eye per patient," the complaint states.

Kiely's medical license is active, according to the Maryland Board of Physicians website, and no disciplinary actions have been taken against him in the past decade. No malpractice judgments or arbitration awards were reported, either, and Maryland's online court records show only that he won a malpractice lawsuit filed against him in 2008.